5 Barb. 560 | N.Y. Sup. Ct. | 1849
There is some conflict in the evidence in this case. The witness John Follett testified that the plaintiff came into the defendant’s tavern in Delhi, and took off his over-coat and gave it to the bar-keeper, and he thinks it
But it was said that it does not appear that the coat in question was lost before the plaintiff departed out of the house, and that therefore he is not to be considered as a guest at the time the loss occurred; and consequently the defendant was not liable. There are two answers to this objection ; the one is the jury have found the fact, upon the evidence in the case, that he was a guest. The other is that it is fairly to be inferred from the evidence in the case that the plaintiff lost his coat before he started to leave the town to go home, and if he was only out to see the town or to view the training, intending to return to the defendant’s before he left for home, and get his coat, then I think he was still to be considered as a guest of the defendant. It has been expressly adjudged that if the guest goes out to view the town for a while, intending to return, the inn-keeper is liable for his goods lost in his absence. (2 Croke’s R. 189.) And so if he goes out and says he will return at night. (1 Comyn’s Dig. 421, 413.) JuSlbe Bronson, in the case of Grinnell v. Cook, (3 Hill’s R. 490,) affirmed this doctrine in the following language : “ Now when a man, after he ' has actually become a guest and delivered his property to the host, goes away for a brief period, leaving his goods behind him, the law is chargeable with no absurdity in considering him as still continuing a guest, so far as relates to the rights and liabilities of the parties.” It is a familiar principle of law that it is not necessary that the goods should have been placed in the special keeping of the inn-keeper, in order to make him li~
delivery of the goods into the custody of the inn-keeper is not necessary to charge him with them; for although the guest doth not deliver them or acquaint the inn-keeper with them, still the latter is bound to pay for them if they are stolen or carried away; even though the person who stole them or carried them away is unknown.” (Story on Bailments, §479,p. 373.) If tile goods are only placed infra hospitium that is enough.
It is not necessary, where the goods are proved to be lost, to prove negligence in the inn-keeper, to make him liable for the loss. (Calye’s case, 8 Co. 32. Bennett v. Mellor, 5 T. R. 273. Clute v. Wiggins, 14 John. 177. 2 Kent’s Com. 594, 3d ed.) There is nothing in the point that the plaintiff should have proved a demand. Where the goods are lost, no demand is necessary, nor where the bailee admits they are lost: this is enough. (1 John. Cases, 406.) But the jury must have found there was a sufficient demand. Again; the justice has not stated in his return that he has returned all the evidence given before him on the trial; and however much we might be inclined to presume in favor of official duty in the justice, we are not at liberty to do so in such a case, after what the court of dernier resort in this state have recently decided. They have held that if the return of the justice does not state that it contains all the evidence, they will presume that there is enough kept back to sustairftlfe judgment. I am therefore of opinion, in the first place, that the common pleas erred in reversing the ' judgment of the justice, upon the evidence in the case; and secondly, that as the return does not state that all the evidence is returned, we are compelled to infer that there is enough kept back to sustain his judgment. The judgment of the common pleas must be reversed and that of the justice affirmed.
Judgment reversed.